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Thursday, 3 October 2013

Cyber Bullying

A modern phenomenon that is increasingly prevalent in todays
technologically sophisticated society is a nuanced form of harassment and
intimidation known as cyber bullying. It
has lead directly to several teenage suicides and recently the suicide of
a 12-year-old child.

Cyber bullying can be formally defined as the use of digital technology
or technological devices (such as the Internet, mobile phones or online games by
a person or group of persons) to threaten, harass or humiliate another person[1].

The typical forums currently used
are Facebook, Twitter, Instagram, WhatsApp, BBM and a variety of blogs and Internet
websites. The victim is typically
harassed over a period of time and very often feels helpless, depressed and
altogether unhappy. There are remedies
available, some with little to no cost at all, others, which may involve a
court application and cost significant amounts of money.

In South African law, Parliament recently promulgated the Protection
from Harassment Act 17 of 2011 (“the
PFHA Act”). Its primary
responsibility is to afford victims of harassment an effective remedy against
such behavior.

In addition, in South African law, the Domestic Violence Act 116 of 1998
affords protection to a person harassed by a partner, girlfriend or
spouse. Accordingly, the legal framework
allows any victim, in any situation, to apply to court to prevent or stop the
abuse. Court proceedings are, however,
costly. So, what can be done without
recourse to the legal process?

For purposes of debate, lets assume harassment occurs across social
media and internet blogs.

All social media platforms have mechanisms to report violations or
breaches of the terms of use. Facebook,
for example, has a specific page to report violations. Further, there is a “how-to” guide insofar as
harassment is concerned. One can even
report a violation without holding an account.

Similarly, Google has a facility
to remove content that is in breach of its terms of use. A cursory Google search will reveal similar
pages for all social media platforms and internet blog hosts.

In practice however, most of the methods above will fail unless there is
an overt act or acts of harassment, or a plain breach of the terms of use. In most situations, unfortunately, the
harassment is nuanced and subtle which means that the likes of Facebook will
not act, even when threatened via a legal letter of demand.

Where does that leave the victim of harassment? How do I stop cyber bullying?

Firstly, it is always in all parties best interests to attempt to
resolve these sorts of disputes amicably. This is often not possible, so the
next step may be to formally request the person to stop the harassing and
intimidating behavior.

If discussion and a letter of demand have no effect, which is typically
the case, the victim can apply to court on an urgent basis (and without having
to serve papers on the accused) for interim relief in terms of the PFHA Act or
the Domestic Violence Act, depending on the circumstances and relationship
between the parties.

Both applications are similar, requiring the victim to make out a prima facie case showing the court that
harassment has occurred and will likely continue occurring, which harassment
will cause the victim harm – either emotional, physical or economic.

These matters are heard in camera,
which essentially means behind closed doors and in a Magistrate’s
chambers. A Magistrate will consider the
papers before him or her and usually ask the victim salient questions about the
accused, the harassment and how it takes place.
Once satisfied, the court will grant an interim protection order on
specific terms – e.g.: Mr. XYZ is
prohibited from communicating with the Mrs. ABC via social media and Internet
websites, either directly or indirectly.

The orders will differ depending on the harassment and usually
specifically prohibit certain conduct.
As mentioned, this is done without notice to the accused but once the
interim order is granted (or even if it is rejected), the court papers are
taken to a police station and a member of the SAPS (or a relevant Sheriff of
the court) serves the order (with the court papers) on the accused.

Thereafter, a further hearing will be scheduled (normally two weeks from
the date the interim order is issued) where the accused has a chance to tell
their side of the story and defend themselves if required.

At this hearing, essentially, the court decides whether to make the
order final or whether to dismiss it. If the harassment continues while the
interim order is in effect, or continues after the order is made final, the
victim can obtain an arrest warrant for the accused.

Think long and hard before going down this road. It often only brings a pyrrhic victory.

2 comments:

Cyber bulling is defined as the use of digital technology to threaten or humiliate another person. Law primary responsibility is to afford victims of harassment an effective remedy against such behavior. Houston personal injury attorney